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Pérez-Llorca updates

The Barcelona Court of Appeal recently confirmed the Barcelona Commercial Court 8 decision which upheld L'Oréal's revocation action against Laboratorios Genesse's AFTERSUN mark. L'Oréal had filed the revocation action against the mark due to its popularisation in the Spanish market. Laboratorios Genesse had filed a counterclaim alleging that L'Oréal's use of the expressions 'after sun' and 'after-sun' infringed its trademark rights.

The Supreme Court recently analysed the differences between compensatory and punitive penalty clauses in lease agreements and established the requirements for the latter to be valid. The court also ruled that a punitive penalty clause's amount cannot be reduced simply because the lessor enters into a new lease agreement immediately after recovering possession of the commercial premises.

Although Article 348bis was included in the Companies Act in 2011, its application was suspended until January 2017. Due to the constant delays in the provision's implementation, there is little case law on the matter and a lack of harmonised criteria for interpreting the provision and applying the right recognised therein. A recent A Coruna Court of Appeals decision on this matter is therefore significant, particularly because it analyses two questions which are likely to arise from the article's application.

A trade union recently sought to declare the existence of a de facto collective dismissal on the grounds that the company had exceeded the maximum number of individual objective dismissals (as well as other comparable terminations) in a 180-day period. However, the Supreme Court rejected the claim and ratified several points regarding collective challenges of terminations that, de facto, could exceed the thresholds.

The Supreme Court recently considered whether the cancellation of a company with the Companies Registry removes its legal capacity or only limits it for the purposes of covering the debts that appear after such cancellation, in which case the company could be sued. Another issue that this ruling clarifies is who should represent such a company in court.

A protective letter is a form of anticipatory defence against ex parte interim measures. It aims to present the defendant's arguments to the court before an ex parte interim measure is adopted and, if possible, prompt the court to call for a hearing before adopting the interim measure. While Spanish law did not previously recognise protective letters, the recently enacted Patent Act recognises them in relation to IP matters.

In a pioneering ruling, Madrid Commercial Court 2 recently ruled in favour of a French company and its Spanish subsidiary with regard to an unfair competition claim. Notably, the judge ruled that the subsidiary's operation of a digital platform through which people arrange to share a road journey (and the associated costs) is legal and does not constitute a transport activity. The ruling is the first step towards establishing the long-awaited legal framework for this type of activity.

Spanish law provides that Spanish courts have jurisdiction to decide on disputes taking place within Spanish territory and involving Spanish and foreign nationals. The only exceptions to this are in cases of either immunity from jurisdiction or immunity from enforcement as established in public international law. Notwithstanding this general rule, there are certain exceptions in case law.

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